| FREEDOM OF INFORMATION — Public authority — Information supplied under statutory procedure — Statute forbidding disclosure for other purposes of information given in confidence — Whether information exempt from disclosure pursuant to freedom of information request — Animals (Scientific Procedures) Act 1986, s 24(1) — Freedom of Information Act 2000, s 44(1)
Secretary of State for the Home Department v British Union for the Abolition of Vivisection and another [2008] EWCA Civ 870; [2008] WLR (D) 273
CA: Lord Phillips of Worth Matravers CJ, Carnwath and Hallett LJJ: 30 July 2008
Information supplied by applicants for animal experimentation licences was exempt from disclosure under the Freedom of Information Act 2000 if the official in possession of the information knew or had reasonable grounds for believing that it was given in confidence, which was a subjective test requiring consideration of the position when the information was given and the intentions of the giver at that time, rather than an objective test derived from the law of confidentiality.
The Court of Appeal so held in dismissing an appeal by the British Union for the Abolition of Vivisection (“BUAV”) against the decision of Eady J in the Queen’s Bench Division on 25 April 2008 overturning a decision of the Information Tribunal and upholding a decision made by the Information Commissioner on 12 June 2007 that certain information requested by BUAV under the Freedom of Information Act 2000 was exempt from disclosure under s 44(1) of the 2000 Act as a result of s 24 of the Animals (Scientific Procedures) Act 1986.
The 2000 Act provides by s 44(1) that information is exempt from disclosure under the Act “if its disclosure ... by the public authority holding it—(a) is prohibited by or under any enactment ...”
The 1986 Act provides by s 24(1): “A person is guilty of an offence if otherwise than for the purpose of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence.”
CARNWATH LJ, giving the judgment of the court, said that the appeal raised a short question of construction under s 24 of the 1986 Act viewed in the context of the Secretary of State’s obligations under the 2000 Act. At issue was a freedom of information request by BUAV for certain categories of information supplied by applicants for animal experimentation licences under the 1986 Act. The request was refused by the Home Secretary, whose decision was upheld by the Information Commissioner and ultimately by Eady J. BUAV’s case was that information should not be regarded as exempt from disclosure by virtue of s 24 of the 1986 Act unless it satisfied the tests for an action for non-contractual breach of confidence, summarised in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47: the information must have the necessary quality of confidence about it, it must have been imparted in circumstances importing an obligation of confidence and there must be an unauthorised use of that information to the detriment of the party communicating it. The question was whether s 24 imported, by implication, that three-part test. S 24 had to be considered in the context of the 1986 Act and not through the spectacles of the later 2000 Act. Viewed in that perspective, there was no reason why it should not be read as meaning what it said. The section was couched in subjective terms, directed at the state of mind of the official or other person in possession of the information. It raised a simple question of fact: did he know or have reasonable grounds for believing that the information was “given in confidence”. The latter words in turn directed attention to the position when the information was “given” and to the intentions of the giver at that time, either as expressed or as reasonably to be inferred from the circumstances. There was nothing in the statutory language or the context (or in the parliamentary materials) to justify importing a separate, objective test derived from the law of confidentiality. Accordingly, the commissioner’s decision would be confirmed.
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Appearances: David Alexander QC and Kate Olley (Solicitor, British Union for the Abolition of Vivisection) for BUAV; Tim Kerr QC and Karen Steyn (Treasury Solicitor) for the Secretary of State; Akhlaq Choudhury (Legal Director, Office of the Information Commissioner, Wilmslow) for the commissioner.
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